A Powerful Dissent Charges Judges Who Casually Uphold Magazine Restrictions With Disrespecting the Second Amendment

A 3rd Circuit judge says the decision approving New Jersey's 10-round limit treats the right to arms less seriously than other constitutional rights.

Yesterday the U.S. Court of Appeals Court for the 3rd Circuit upheld New Jersey's 10-round limit on gun magazines, echoing five other federal appeals courts that have found such laws to be consistent with the Second Amendment. "New Jersey's law reasonably fits the State's interest in public safety and does not unconstitutionally burden the Second Amendment's right to self-defense in the home," Judge Patty Shwartz concludes in an opinion joined by Judge Joseph Greenaway.

A powerful dissent by Judge Stephanos Bibas, the third member of the 3rd Circuit panel, argues that the majority's reasoning fails to take the Second Amendment as seriously as the Supreme Court said it should be in District of Columbia v. Heller, the landmark 2008 decision that overturned a local ban on handguns. "The Second Amendment is an equal part of the Bill of Rights," Bibas writes. "We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy."

New Jersey, which has banned magazines holding more than 15 rounds since 1990, imposed the stricter limit last June in response to mass shootings. The law requires owners of "large capacity magazines" (LCMs) to surrender them to the state, render them inoperable, modify them so they cannot hold more than 10 rounds, or sell them to authorized owners (such as retired police officers, who are exempt from the ban) by December 10. New Jersey residents who fail to comply by Monday will become felons, subject to a maximum fine of $10,000 and up to 18 months in prison for possessing previously legal products.

Judges Shwartz and Greenaway note that "millions of LCMs have been sold since 1994" and that "LCMs often come factory standard with semi-automatic weapons." They "assume without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." But because New Jersey's LCM ban "does not severely burden the core Second Amendment right to self-defense in the home," they apply "intermediate scrutiny," which requires that a challenged law advance "a significant, substantial, or important interest" in a way that "does not burden more conduct than is reasonably necessary." By contrast, "strict scrutiny" requires that a challenged law be "narrowly tailored" to advance a "compelling governmental interest."

The majority concludes that "New Jersey's LCM ban reasonably fits the State's interest in promoting public safety," because "LCMs are used in mass shootings" and limiting them may reduce the number of rounds fired in such attacks. "Reducing the capacity of the magazine to which a shooter has access means that the shooter will have fewer bullets immediately available and will need to either change weapons or reload to continue shooting," Shwartz writes. "Weapon changes and reloading result in a pause in shooting and provide an opportunity for bystanders or police to intervene and victims to flee."

The 3rd Circuit's choice of intermediate rather than strict scrutiny relies on some rhetorical sleight of hand. "If the core Second Amendment right is burdened, then strict scrutiny applies; otherwise, intermediate scrutiny applies," Shwartz writes. "Thus, laws that severely burden the core Second Amendment right to self-defense in the home are subject to strict scrutiny."

In his dissent, Bibas highlights the majority's slipperiness in applying strict scrutiny only when the right to self-defense in the home is "severely" burdened. "The Second Amendment's core is the right to keep weapons for defending oneself and one's family in one's home," he writes. "The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period." By weighing the severity of the burden imposed by the LCM ban before settling on a level of scrutiny, Bibas says, the majority "puts the cart before the horse," since "we never demand evidence of how severely a law burdens or how many people it hinders before picking a tier of scrutiny."

If the size of a magazine can make a difference in the hands of a mass shooter, Bibas notes, it also can make a difference in the hands of a law-abiding person using a gun in self-defense. "The government's entire case is that smaller magazines mean more reloading," he writes. "That may make guns less effective for ill—but so too for good. The government's own police detective testified that he carries large magazines because they give him a tactical 'advantage[],' since users must reload smaller magazines more often. And he admitted that 'law-abiding citizens in a gunfight' would also find them 'advantageous.' So the ban impairs both criminal uses and self-defense."

More generally, "Any gun regulation limits gun use for both crime and self-defense. And any gun restriction other than a flat ban on guns will leave alternative weapons. So the majority's test amounts to weighing benefits against burdens." Justice Steven Breyer advocated such a "balancing approach" in his Heller dissent, Bibas notes, and "the Heller majority rejected it."

Even under intermediate scrutiny, Bibas argues, New Jersey has not met its burden, relying on "anecdotes and armchair reasoning" rather than evidence that limiting magazine size reduces mass shooting casualties. "The government has offered no concrete evidence that magazine restrictions have saved or will save potential victims," he writes. "New Jersey cannot win unless the burden of proof lies with the challengers. It does not." But the majority "effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government." Furthermore, he observes, "the majority offers no limiting principle," since "its logic would equally justify a one-round magazine limit."

Bibas also faults the majority for neglecting the "tailoring" required by intermediate scrutiny. New Jersey already had a 15-round magazine limit, and it also has a discretionary carry permit law that severely restricts who may bear guns in public. Yet the state presented no evidence that such policies are so inadequate that the further step of imposing a lower magazine limit is necessary.

Bibas argues that "the majority's watered-down 'intermediate scrutiny' is really rational-basis review," a highly deferential standard that asks only if a policy is rationally related to a legitimate government interest. "Though the Supreme Court has yet to specify a tier of scrutiny for gun laws," he says, "it forbade rational-basis review."

Why does the 3rd Circuit majority, like the other courts that have upheld legal limits on magazine capacity, treat the right to keep and bear arms so casually? "It offers only one reason: guns are dangerous," Bibas writes. "But as Heller explained, other rights affect public safety too. The Fourth, Fifth, and Sixth Amendments often set dangerous criminals free. The First Amendment protects hate speech and advocating violence. The Supreme Court does not treat any other right differently when it creates a risk of harm. And it has repeatedly rejected treating the Second Amendment differently from other enumerated rights. The Framers made that choice for us. We must treat the Second Amendment the same as the rest of the Bill of Rights."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

You probably have a point in a perfect libertarian world, but that’s like making the argument that the 1964 Civil rights act is unconstitutional, both ships have sailed and as well meaning as the criticism may be on a theoretical basis, it’s a hard argument to sustain. Especially since both “freedoms” whenever exercised are going to have negative effects.

But magazine limits and assault weapons bans and may issue laws haven’t made it out of harbour yet, let alone beyond the horizon, so there is still hope for retaining those liberties. And contrary to the two examples above 99.9 percent of the time large capacity magazines are used they have no negative effects at all.

“Child pornography” covers several areas. I agree that making child porn or distributing it for profit are indeed worthy of severe penalties. But when mere possession was outlawed, it created immense legal issues which have never been fully addressed. Take for example, the case of Lawrence Matthews (http://ajrarchive.org/article.asp?id=594)

I’m not suggesting that there should be “journalist” exceptions to the rule. I’m stating that this is a bad law. It turns out that even if you unknowingly possess child porn, you can go to prison for up to 10 years.

Suppose someone sent an email with a very nice picture (which included steganographically-encrypted child porn images) to every member of congress, the president, every state legislator, judge and prosecutor in the Country. Upon receipt, each recipient would be guilty of possessing child pornography and subject to federal prosecution. Even if they deleted the file, the file remains on their disk and can be resurrected, and so they are still in possession and still guilty. There’s no “intent” element, so mere possession is sufficient to sustain a conviction.

This might be a worthwhile exercise – to see if all the recipients – every judge, prosecutor and legislator – duly report for prosecution and sentencing.

“There’s no ‘intent’ element, so mere possession is sufficient to sustain a conviction.”

There’s no intent element, there’s a knowledge element. The offense is to “knowingly possess,” so your examples would fail. Matthews knew what he was doing and intended to do it, but that he should get a pass because he was doing it as part of a journalistic project. That’s no more of a defense than if a journalist was engaged in selling drugs for the purpose of writing an article about the experience.

If guns cause crime, then cameras cause child porn. The gun/camera comparison is a great way to point out the fallacy of the “what the tool is designed to do” versus “the intent of the user”. I’m bored of hearing about guns being bad because they are designed to kill people. No they aren’t, they are designed to send a projectile down a barrel. The intent for which that projectile is being sent is up to the user, just like what you take a picture of is up to the photographer, not the camera. A camera can be used for bad just like a firearm, but we’re not banning cameras are we?

That may actually be true, but not for the reason that they’re implying. Both police departments and military units do as little live fire training as possible, because ammunition is expensive. Also, most military personnel aren’t spear carriers; they’re either part of the logistical train, or they work with larger weapons systems, so there’s no reason for them to be particularly competent with firearms. Hence they get little to no weapon training after basic.

So the reality is that neither are particularly well trained, but the average cop is probably slightly better trained than the average for all military personnel. There are also lots of civilians that are better trained than either.

I have a handgun legally purchased in New Jersey 2 years ago. I already had an NJ firearms ID and did the paperwork to get a permit to purchase a handgun. At a gun-store, the dealer checked all that paperwork then ran an FBI background check on me. Finally I bought a handgun with 15-round NJ legal magazines.

After all that crap, my 15-round-magazines are now illegal and can land me in jail.

Unfortunately it doesn’t count as ex post facto because you can’t be charged with buying the mag, nor can the dealer be charged with selling you the mag, nor could either of you be charged if you had then sold the mag 1 year ago.

Charging you for buying/selling a magazine before it was illegal to do so would be ex post facto. Charging you with possessing magazine you no longer possessed when the law was passed would be ex post facto.

Charging you with continuing to possess the magazine after it was banned is not ex post facto

If I lawfully own a specific article or class of articles, laws cannot be passed rendering that simple possession a crime. That IS ex post facto. I already possess it legally today, and by doing nothing if I still possess it next Monday I am a criminal? That is the heart and core of ex post facto.

Further, the State of New Jersey is effectively requiring that I divest myself of that personal property and will not compense me in anu way for the loss of possession and/or use of that item starting in four days. Fifth Article of Ammendment in those cisrumstances demand government MUST provide me wth just compensation. And don’t tell me I can drive it into Pennsylvania and store it there. That is not possession, it is ownership. Constitutoin specifically says POSSESSION… which NJ are denying her People by telling them they can no longer pOSSESS thoseitems.

That horse left the barn way back when FDR banned possession of gold, didn’t it? Not to say it’s right or constitutional, but it’s been established that when the government does that, the government umpires will look the other way.

I must not have read the bit in the bill of rights where the founders put ‘in the home’ into the 2nd amendment. Sure, I’m aware that they’re inserting that bit of jargon purely because of Heller but a plain reading of a plainly worded amendment reveals that all of these fucks are playing word games because they simply do not respect the second amendment, period.

I must not have read the bit in the bill of rights where the founders put ‘in the home’ into the 2nd amendment. Sure, I’m aware that they’re inserting that bit of jargon purely because of Heller but a plain reading of a plainly worded amendment reveals that all of these fucks are playing word games because they simply do not respect the second amendment, period.

A free case of beer to the first right-winger who points me toward the spot at which the founders placed “child pornography’ (or ‘defamation,’ or ‘government secrets,’ or ‘obscenity,’ or ‘fighting words,’ or the like) First Amendment.

not disagreeing with most of your assertions, unless you are advocating for the LCM ban because the listed examples are “common sense regulation”. They are all just more examples of ignoring the plain meaning of the constitution.

it is not speech, but property. private pictures taken without consent are private property, as children can not consent, posession should be looked at as stolen property.

Defamation should only be civil. You are free to say what you want, but if lying about a person causes harm they have the right to recompence / another property right.

government secrets is an oxymoron, if the government is “of, for, and by the people” and governs with the consent of the public; how can the public consent if the govt operates in secret?

obscenity, and fighting words are subjective. Outlawing speech based on subjective responses to that speech is in blatant violation of “shall make now law”.

but to your “point”: bear in mind that the first words of that First Article of Ammendment are “CONGRESS SHALL MAKE NO LAW…….. then follows with a shortlist of areas of public concern about which CONGRESS are forever proscribed from making any law in those regards.

No, they did not specifically use those words or categories you mention. But they WERE straitly charged to NOT make any laws restricting speech. Thus FEDERAL laws relating to such things are unconstitutional. However, despite the fact FedGov are not to restrict those things, state governments are NOT “Congress”, and thus are free to make such laws. Come to the Second, however, there IS no restricting language of that sort. the right to keep and bear must not be infringed…. no qualifiers, no limits, no. outs or exceptions. That shall not be infringed by anyone or thing, including government agencies.

The police have no “duty-to-protect” you. SCOTUS has ruled on the subject many times here are three main case Law rulings. Caetano vs Massachusetts Warren vs District of Columbia Gonzales vs Castle Rock DeShaney vs Winnebago County

Please explain how the Rev. Arthur L. Kirkland protects your family when the Gov’t can’t, won’t, or doesn’t?

The majority are essentially arguing that my rights are solely dependent upon the good behavior of other people who I don’t know and have no control over. That’s a rather bizarre idea of what a right is.

How long do these morons think it takes to change a magazine? I can, and imagine nearly everyone with a little practice, can change a magazine in less than 5 seconds. We would have training on our flight deck where we had to empty 3 clips from 3 different distances (one clip for each distance) in 2 minutes or less. On a Navy ship on a foreign port (at least when I was in), there is one person with a .45 to guard the gangplank. Proficiency of accuracy and quickness is a must.

a colloquialism used as a short hand for box magazine. This term contains fewer syllables, yet still conveys the idea of having multiple rounds of ammunition mechanically held together into a cohesive, easily replaceable, item. Even if the method of mechanical operation varies slightly between the two, the overall operational concept and benefit remains the same.

Earlier this year the Fourth Circuit applied intermediate scrutiny in upholding Maryland’s Ban on “assault rifles,” arguing that while such a ban would not in fact make anyone safer, it was good policy because it would make people “feel” safer.

Time for the Supreme Court to weigh in with a clear majority that does not agree with this false premise.

Meh. Those who practice with, and are proficient with their firearms can do just fine with 10 rounds. If that’s what it takes to give me a chance against some dumbass who fumbles a reload, then great. Let him only have 10 rounds.

But it’s all a moot point anyway. Here in CO, we have a 10 round law. But high capacity “rebuild kits” are easily available at every firearm store.

This is an example of reaching the conclusion first and then writing the backstory. They already know guns are bad and need to be restricted, they just need to find some bullshit explanation for why.

Given the ease at which contraband finds its way across state borders, there’s nothing to stop someone with malicious intent from taking a day trip and stocking up on Standard Capacity magazines. Or even buying them in state from the law abiding who have to get rid of them.

Glock magazines can be found on sale for $20 and AR-15s go for $10, and we’ve had 14 years to stock up.

Given the ease at which contraband finds its way across state borders, there’s nothing to stop someone with malicious intent from taking a day trip and stocking up on Standard Capacity magazines.

This is why the left wants a national ban, because until they’re banned everywhere you can just go somewhere that isn’t their little utopia and bring back the devil with you.

I suppose it doesn’t occur to them about the building your own, much like how the Aussie’s were unaware that bikers out in the boonies with a lathe might have some idea’s on how to build fully automatic weapons on their own.

“Large Capacity Magazine?” 20 rounds available sure didn’t feel excessive when I was defending my family that awful day. Then again, I’m an admitted coward on the subject. I don’t see a “fair fight” argument where protecting my family is concerned. I want every advantage. All of them.

“The government has a legitimate interest in limiting the free expression of speech, critical of government, and finds that a law restricting free speech, advanced a significant, substantial and important government interest, in a way that does not burden more freedom than is reasonably necessary.” /Judge Patty ruling on the First Amendment

More generally, you also can’t find a right to firearms for personal self-defense in the second amendment to your Constitution, nor in the historical record of drafting the second amendment at the time of the founding. It wasn’t there at the time. It was added much later.

All of what pro-gun advocates prize about the 2A has been added, without an amendment, by late-twentieth-century judicial fiddling. If you aren’t an originalist?I’m not?feel free to think that’s okay. Just understand that it can be turned around by reversing the courtroom process that created it in the first place.

And stop fantasizing that you are invoking originalist arguments. Until you can back them up with history, you aren’t.

No amendment needed. The courtroom fiddling which gave us a personal self-defense justification from the 2A can be turned around by more courtroom fiddling pointing in the other direction?with the added plus that the latter fiddling will actually restore original meaning, for those who care about that.

First off everyone who can should leave the peoples socialist republic of NJ. Its become Cali east with all the stupid laws, taxes and lib-tards. The ones that stay fuck this law. Better to be alive after you have defended yourself than dead, but have complied with yet another one of the states retarded law.

“..The law requires owners of “large capacity magazines” (LCMs) to surrender them to the state, render them inoperable, modify them so they cannot hold more than 10 rounds, or sell them to authorized owners (such as retired police officers, who are exempt from the ban) by December 10. New Jersey residents who fail to comply by Monday will become felons, subject to a maximum fine of $10,000 and up to 18 months in prison for possessing previously legal products.. ”

government’s entire case is that smaller magazines mean more reloading,” he writes. “That may make guns less effective for ill?but so too for good

Did anyone else reading about shooter in the recent bar/dancehall shooting in Califorina too breaks from shooting to text and twit? What did the pertified huddled masses DO during those breaks? NOTHING!!!!! Any group of any size and ability could have bum-rushed the creep, knocked his weapons out of reach, decked him, and began pummeling him into submission, even if none had the balls to pick up one of his guns and point it at him till the coppers showed up. In this case, mag cap was irrelevant. He seemed to do alright in the carnage department. A rifleman can drop and replace a mag in under a second…… about the time it takes for one to acquire a new target and sight picture on another vitcim.

The appeals need to get this sort of evidence and thinking in front of the next court. Bring on statistics from which shooters used what types of weapons, and include mag cap as one column in the spreadsheet. Include time from first shot to last, number of killed and wounded, and what made the shooter end his carnage. The next court needs to be properly instructed as to tiers of scrutiny, REASONS for keeping and bearing arms, real world information.

The Supreme Court does not treat any other right differently when it creates a risk of harm. And it has repeatedly rejected treating the Second Amendment differently from other enumerated rights. The Framers made that choice for us. We must treat the Second Amendment the same as the rest of the Bill of Rights.”

No other amendment creates anything like the same risk of harm. Pick any other amendment you want, and show the law would leave it unfettered in cases where it enabled a crazy person in public to start killing folks as fast as he could pull a trigger. The suggested equivalence is bunk. The OP is not arguing in good faith.

Very simple put, the judges are ruling in bad faith. They know that the Constitution means what it says. They just don’t like what it says. An enumerated right gets subject to rational basis review, but the “penumbra” rights like the “right” to kill one’s fetus or insert one’s penis into another man’s butt get strict scrutiny.

In addition to the reason Bibas identified that the law fails intermediate scrutiny, there’s another. If “self defense in the home” is the primary reason for keeping and bearing arms under the 3rd Circuit’s theory of the 2nd Amendment, a prohibition on LCMs everywhere certainly burdens more conduct than is reasonably necessary, because it prevents possession of LCMs in the home, which the 3rd Circuit theorizes is the primary purpose of the right to keep and bear arms. In order to “not burden more conduct than is reasonably necessary” the law should only be able to prohibit the possession of LCMs *outside* the home.

Ownership of guns is for militia as stated in the Constitution, for defending one’s home and also going out of the home and defending the territory and people of a village or settlement. The people or agencies that you are defending against (the Royalists, at the time) may not abide by your LCM limit.

Maryanne Godboldo is one person in modern times who actually had to rightfully defend herself and her family, in her own home, from government agents who sought to unlawfully enter her home and seize her child.

All those who don;t see thru this nonsense have yet to tell us what’s so special about 10 rounds. The logical conclusion of allowing that is that you can constantly bring the number down as much as you want and when they get to one, they’ll come up with all sorts of others restrictions.

Guns & gun parts not covered by a ban are just as capable and lethal as those that were. If you ban certain guns, fewer people will die with THOSE guns. Just do not expect overall murder rates to change.

After a shooting spree, liberals always want to take the guns away from the people who didn’t do it.

It will be interesting to see the compliance rate among preexisting owners of “large capacity” magazines. Hopefully they will all exercise Irish democracy, thereby quietly informing the state of New Jersey and gun grabbers everywhere know that they may go to hell.

All persons in the State must recant each instance of speech that was made prior to this date that would fit the definition of Hate Speech as defined in this ruling. Those who fail to do so will be charged with a felony and subject to a $10,000 fine.

Yeah… It takes all of a couple seconds to change mags. Not going to make much difference, especially since one can simply take cover for that couple seconds, which one should be doing anyway. Also, one could, GASP, get 30 round mags from the next state over.

How these people think these nonsense laws will make any difference is beyond me. We need to fight them on every single one of these things tooth and nail. Their end game is no guns at all, so every step must be fought to the bitter end.